Joint Enterprise

The concept of joint enterprise has been something of a
controversy over the past few years with people arguing that convicted murders
should not stand convicted because they were not at the murder scene etc.

I was recently followed on Twitter by the Justice for Wesley campaign, which argues that Wesley Porter was wrongly convicted for his
part in a gangland murder. According to
the Liverpool Echo newspaper, Porter was alleged by the prosecution to have
supplied the murder weapon to the killer and was thus convicted under the joint
enterprise law.

Jonathan Herring in his Criminal Law textbook succinctly
defines joint enterprise as arising “where two or more people together embark
on the commission of a criminal offence.
The two parties may expressly agree to commit a particular crime, or
this may be an unspoken agreement.”
There is no requirement for all of the parties to a joint enterprise to
know one another but it is important that they are working toward a common
cause.

I explain joint enterprise to clients by likening it to
BP or Shell. Let’s take three employees
of those companies, the person working on the petrol forecourt, the person
drilling for oil and the managing director.
They won’t necessarily know each other but they are working together in
a common cause and are linked together by their work to further that common
cause. In the same way, parties to a
criminal venture may or may not know each other.

There can be an overlap between joint enterprise,
conspiracy and accessories to offences.
For example, if John supplies Mark with a gun knowing that Mark will use
the gun to kill Peter then John could be guilty of murder by joint enterprise if
they are both working together to further the cause of killing Peter. Equally, if John enters into an agreement to
help Mark then they could both be charged with conspiracy to commit
murder. Finally, John could be guilty of
aiding, abetting, counselling or procuring an offence of murder.

I will just take a moment to quickly explain two
terms. First, a principal offender is
the person who commits a crime, e.g. the man who pulls the trigger of a gun to
kill somebody else. In joint enterprise
cases the concept of the principal offender is stretched somewhat to include
those around the principal who are involved but not holding the gun. Secondly, an accessory is somebody who is a
secondary party to the principal’s offence.
Typically, this is somebody who aids, abets, counsels or procures a
crime. We’ll discuss this more later on.

What is the difference between a conspiracy and joint
enterprise? The truth is that in many
cases there will be a significant overlap and a prosecution could be framed as
conspiracy or joint enterprise. They key
difference is that joint enterprise requires a crime to have taken place. Conspiracy is the crime and is committed once the agreement to commit a crime
is reached even if that plan is never implemented and the “actual” crime, e.g.
a burglary, never takes place.

So, if John and Mark agree to kill Peter they are guilty
of conspiracy to murder at the point they reach the agreement, even if they
never go on to actually kill Peter. They
cannot be guilty under the joint enterprise law as no murder has taken place.

Is there a difference between joint enterprise and
aiding, abetting, counselling or procuring an offence? According to Herring, some commentators say
that joint enterprise is just a fancy form of aiding and abetting an offence. Personally, I think that there is a
difference because the mens rea (the mental element of a crime) must be
different for aiding and abetting than for the commission of the offence
itself. The individual words “aiding”, “abetting”,
“counselling” and “procuring” are not particularly well defined by the courts
because since the abolition of the need to distinguish between felonies and misdemeanours
aiding and abetting has always been charged using all four words. Nonetheless,
I will do my best to define each word for you:

1. Aiding
– occurs when an accessory to a crime offers help or assistance to the
principal offender, e.g. by supplying a gun for use in a crime.

2. Abetting
– I will quote Herring’s book here, as it made me laugh. “To be
honest no one knows what abetting means”.
In NCB v Gamble [1959] 1 QB 11
Devlin, LJ. says that abetting is encouragement given at the time of the
offence as opposed to procurement, which is encouragement given before the
commission of the offence. Personally, I
think it’s just an old-fashioned word that means nothing except that some long
dead lawyer insisted on the belt and braces approach to drafting and others
trying to look clever took up the word rather than admitting they had no idea
what it meant.

3. Counselling
– involves directing somebody to commit an offence. The accessory may indicate that commission of
a particular offence is desirable or may go further to incite or instigate the
crime, e.g. King Henry’s words "Will no one rid me of this turbulent
priest?" were interpreted by his followers as meaning he wanted Thomas
Becket killed. If that was his meaning
then perhaps that would be counselling…
if he wasn’t King that is.

4. Procuring
– will occur when the principal acts as a result of the accessories actions,
e.g. Peter hears of a conspiracy between Mark and John to kill him and so
convinces Trevor, who has a grudge against Mark and John, to off them before
they can top Peter.

So, we can see that aiding and abetting involves helping
the principal while joint enterprise goes well beyond that and enters the territory
of being so involved in the offence that the defendant becomes a principal
offender himself.

People don’t like the concept of joint enterprise because
it makes them guilty of an offence as a principal offender even where they have
not been present for the commission of the actual offence. The argument really comes down to “well if I
wasn’t there how can I have murdered him?”
With respect, this is a nonsense.
Let’s imagine a sophisticated cash in transit robbery. Charlie and his gang plan to steal gold
bullion from the middle of a busy city by using the talents of Professor Peach
to reprogram the city’s traffic control system to leave them an easy exit route,
in three Mini’s driven by Dominic and pals, while causing chaos throughout the
rest of the city.

Leaving aside the possibility of a conviction for a conspiracy
offence for the moment, what would happen if there was no joint
enterprise? Each member of the gang
knows what the purpose of the group is.
Each has his particular task assigned to him. It would be a mockery to say that Professor
Peach is not guilty of his part in the robbery because he was not there even
though without his computer prowess the robbery could never have occurred. It would be silly to say that Dominic and
pals are not guilty because they were not at the scene of the robbery and
merely loaded the gold into their Minis and drove it out of the city.

On the same basis, it is a nonsense to say that a group
of criminal associates who agree to murder a rival and each take their
allocated roles are not guilty of murder simply because only one of them pulls
the trigger.

With respect to the Justice for Wesley campaign I do not
think their complaint is with joint enterprise so much as with the jury’s
acceptance of the prosecution evidence over the defence case. Saying that somebody should not be guilty
simply because of a perceived fault with joint enterprise seems, to my mind, to
accept involvement in the offence and to be an argument for conviction for an
offence other than murder. I do not
think this is what Justice for Wesley is actually saying. Having read their website it looks more to me
like they are arguing that he is completely uninvolved and that the evidence at
trial was too weak and should never have been left to the jury at all. All I know about the case is what is reported
in the press and on the campaign’s own website.
All I can say is that I find it difficult to believe that what is
reported is the extent of the prosecution evidence. If it is I cannot fathom how it passed the
evidential test, let alone got past the half-time point in the trial or led the
jury to a conviction. But that has
nothing at all to do with joint enterprise!

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Comments

The funny thing is that the people who usually object to joint enterprise as a tool of prosecutorial oppression (which it certainly can be) applaud its use to convict two men for murdering Stephen Laurence, neither of whom wielfed the knife. "The case is altered" indeed!

I am reminded of this landmark judgement in the matter of 'joint enterprise:

"At common law, a person who commits a felony involving personal violence, does so at his own risk, and is guilty of murder if the violence results, even inadvertently, in the death of the victim.And although it might be true to say that one person had not agreed before-hand that the victim should be struck upon the head in a way likely to cause his death, if he was a party to this felonious act of robbery with violence - some violence - and that the other person, in the course of carrying out that common design, does an act which causes the death, then the second person is equally responsible in law".

Joint enterprise is an awful lazy law. You do not need to prove intention for a secondary party just that the secondary party foresaw the possibility that the primary party may cause serious harm and then participated or encouraged.

Now that sounds ok, could be better but not dreadful. However participated or encouraged is a bit misleading as precedent dictates that a secondary party need only be present with 'a knowing look, nod or a wink'.

A knowing look? Really? Is that actually our great English Legal systems threshold for murder? And also obviously the vast majority of these convictions are not direct evidence based. How can they be? There can be no real evidence to determine what a secondary party may know or be thinking over the primary parties actions especially if they are just standing there with 'a knowing look'.

It's ridiculous the Mens Rea for murder as a primary offender must be an intent to kill or commit serious harm. But a secondary offender must merely just foresee the harm as a possibility?!

So let's take the situation of a spontaneous fight. Everybody present on either side of this brawl can foresee harm and serious harm as it can be a real possibility of violence. All those who decided not to fight and just watch on the peripheral not really knowing what to do will still all be well aware that serious harm can occur. Are they all guilty of murder if a rogue party on a frolic of his own decided to pull out a weapon (beer bottle, knife, his own fists).

Joint enterprise law has the power to find everybody present guilty. This is where JE law goes wrong. In spontaneous situations of violence boys as young as 13 have been found guilty of murder for just being present on the peripheral of a spontaneous altercation. That's a mandatory life sentence for merely being there.

We don't need this 300 year old law designed for duelling in the upper classes. It makes no valid contribution to today's justice system. We have all we need by way of accessories and conspiracy.

I'm not sure it's quite that simple. Archold says this: "A secondary party is guilty of murder if he participates in a joint venture realising that in the course thereof the principal might use force with intent to kill or to cause grievous bodily harm, and the principal does kill with such intent".

It's not enough to merely foresee some serious harm. The other person must agree to take his part in some action that he realises may result in somebody elses death.

If the main party goes beyond what has been agreed then the secondary party is not guilty.

So, in your example, if "a rogue party on a frolic of his own decided to pull out a weapon" then the answer to your question is "no", they are not all guilty of murder.

"The other person must agree to take his part in some action that he realises may result in somebody elses death"I believe the point was made that a "knowing look" will suffice in regard to the former. He needs not take any action per se. Indeed the whole premise of D's liability revolves around supporting P with the requisite foresight (but the agreement can be established by "a knowing look")

."that he realises may result in somebody else's death". That is not the test. The test is: R v CUNNINGHAM 1981Intention to cause grievous bodily harm, but not to cause death, is sufficient to establish the mens rea for murder.

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